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Medical Evidence





On being called, the medical witness enters the witness-box and takes
the oath. This is very generally done by uplifting the right hand and
repeating the oath (Scottish form), or by kissing the Bible, or by
making a solemn affirmation.

1. He may be called to give ordinary evidence as a common witness.
Thus he may be asked to detail the facts of an accident which he has
observed, and of the inferences he has deduced. This evidence is what
any lay observer might be asked.

2. Expert Witness.--On the other hand, he may be examined on matters
of a technical or professional character. The medical man then gives
evidence of a skilled or expert nature. He may be asked his opinion on
certain facts narrated--e.g., if a certain wound would be immediately
fatal. Again, he may be asked whether he concurs with opinions held by
other medical authorities.

In important cases specialists are often called to give evidence of a
skilled nature. Thus the hospital surgeon, the nerve specialist, or the
mental consultant may be served with a subpoena to appear at court on a
certain date to give evidence. The evidence of such skilled observers
will, it is supposed, carry greater weight with the jury than would the
evidence of an ordinary practitioner.

Skilled witnesses may hear the evidence of ordinary witnesses in regard
to the case in which they are to give evidence, and it is, indeed,
better that they should understand the case thoroughly, but they are not
usually allowed to hear the evidence of other expert witnesses.

In civil cases the medical witness should, previous to the trial, make
an agreement with the solicitor who has called him with reference to the
fee he is to receive. Before consenting to appear as a witness the
practitioner should insist on having all the facts of the case put
before him in writing. In this way only can he decide as to whether in
his opinion the plaintiff or defendant is right as regards the medical
evidence. If summoned by the side on which he thinks the medical
testimony is correct, then it is his duty to consent to appear. If,
however, he is of opinion that the medical evidence is clearly and
correctly on the opposite side, then he ought to refuse to appear and
give evidence; and, indeed, the lawyer would not desire his presence in
the witness-box unless he could uphold the case.

Whether an expert witness who has no personal knowledge of the facts is
bound to attend on a subpoena is a moot point. It would be safer for him
to do so, and to explain to the judge before taking the oath that his
memory has not been sufficiently 'refreshed.' The solicitor, if he
desires his evidence, will probably see that the fee is forthcoming.

A witness may be subjected to three examinations: first, by the party
on whose side he is engaged, which is called the 'examination in chief,'
and in which he affords the basis for the next examination or
'cross-examination' by the opposite side. The third is the
're-examination' by his own side. In the first he merely gives a clear
statement of facts or of his opinions. In the next his testimony is
subjected to rigid examination in order to weaken his previous
statements. In the third he is allowed to clear up any discrepancies in
the cross-examination, but he must not introduce any new matter which
would render him liable to another cross-examination.

The medical witness should answer questions put to him as clearly and as
concisely as possible. He should make his statements in plain and simple
language, avoiding as much as possible technical terms and figurative
expressions, and should not quote authorities in support of his
opinions.

An expert witness when giving evidence may refer to notes for the
purpose of refreshing his memory, but only if the notes were taken by
him at the time when the observations were made, or as soon after as
practicable.

There are various courts in which a medical witness may be called on
to give evidence:

1. =The Coroner's Court.=--When a coroner is informed that the dead body
of a person is lying within his jurisdiction, and that there is
reasonable cause to suspect that such person died either a violent or
unnatural death, or died a sudden death of which the cause is unknown,
he must summon a jury of not less than twelve men to investigate the
matter--in other words, hold an inquest--and if the deceased had
received medical treatment, the coroner may summon the medical attendant
to give evidence. By the Coroners (Emergency Provisions) Act of 1917,
the number of the jury has been cut down to a minimum of seven and a
maximum of eleven men. By the Juries Act of 1918, the coroner has the
power of holding a court without a jury if, in his discretion, it
appears to be unnecessary. In charges of murder, manslaughter, deaths of
prisoners in prison, inmates of asylums or inebriates' homes, or of
infants in nursing homes, he must summon a jury. The coroner may be
satisfied with the evidence as to the cause of a person's death, and may
dispense with an inquest and grant a burial certificate.

Cases are notified to the coroner by the police, parish officer, any
medical practitioner, registrar of deaths, or by any private individual.

Witnesses, having been cited to appear, are examined on oath by the
coroner, who must, in criminal cases at least, take down the evidence in
writing. This is then read over to each witness, who signs it, and this
forms his deposition. At the end of each case the coroner sums up, and
the jury return their verdict or inquisition, either unanimously or by
a majority.

If this charges any person with murder or manslaughter, he is committed
by the coroner to prison to await trial, or, if not present, the coroner
may issue a warrant for his arrest.

A chemical analysis of the contents of the stomach, etc., in suspected
cases of poisoning is usually done by a special analyst named by the
coroner. If any witness disobeys the summons to attend the inquest, he
renders himself liable to a fine not exceeding 2 2s., but in addition
the coroner may commit him to prison for contempt of court. In criminal
cases the witnesses are bound over to appear at the assizes to give
evidence there. The coroner may give an order for the exhumation of a
body if he thinks the evidence warrants a post-mortem examination.

Coroners' inquests are held in all cases of sudden or violent death,
where the cause of death is not clear; in cases of assault, where death
has taken place immediately or some time afterwards; in cases of
homicide or suicide; where the medical attendant refuses to give a
certificate of death; where the attendants on the deceased have been
culpably negligent; or in certain cases of uncertified deaths.

The medical witness should be very careful in giving evidence before a
coroner. Even though the inquest be held in a coach-house or barn, yet
it has to be remembered it is a court of law. If the case goes on for
trial before a superior court, your deposition made to the coroner forms
the basis of your examination. Any misstatements or discrepancies in
your evidence will be carefully inquired into, and you will make a bad
impression on judge and jury if you modify, retract, or explain away
your evidence as given to the coroner. You had your opportunity of
making any amendments on your evidence when the coroner read over to you
your deposition before you signed it as true.

By the Licensing Act of 1902, an inquest may not be held in any premises
licensed for the sale of intoxicating liquor if other suitable premises
have been provided.

The duties of the coroner are based partly on Common Law, and are also
defined by statute, principally by the Coroners Act of 1887 (50 and 51
Vict. c. 71). They have been modified, however, by subsequent
Acts--e.g., the Act of 1892, the Coroners (Emergency Provisions) Act,
1917, and the Juries Act of 1918.

The fee payable to a medical witness for giving evidence at an inquest
is one guinea, with an extra guinea for making a post-mortem examination
and report (in the metropolitan area these fees are doubled). The
coroner must sign the order authorizing the payment, and should an
inquest be adjourned to a later day, no further fee is payable. If the
deceased died in a hospital, infirmary, or lunatic asylum, the medical
witness is not paid any fee. Should a medical witness neglect to make
the post-mortem examination after receiving the order to do so, he is
liable to a fine of 5.

In Scotland the Procurator Fiscal fulfils many of the duties of the
coroner, but he cannot hold a public inquiry. He interrogates the
witnesses privately, and these questions with the answers form the
precognition. More serious cases are dealt with by the Sheriff of each
county, and capital charges must be dealt with by the High Court of
Justiciary. In Scotland the verdicts of the jury may be 'guilty,' 'not
guilty,' or 'not proven.'

2. =The Magistrate's Court or Petty Sessions= is also a court of
preliminary inquiry. The prisoner may be dealt with summarily, as, for
example, in minor assault cases, or, if the case is of sufficient
gravity, and the evidence justifies such a course, may be committed for
trial. The fee for a medical witness who resides within three miles of
the court is ten shillings and sixpence; if at a greater distance, one
guinea.

In the Metropolis the prisoner in the first instance is brought before a
magistrate, technically known as the 'beak,' who, in addition to being a
person of great acumen, is a stipendiary, and thus occupies a superior
position to the ordinary 'J.P.,' who is one of the great unpaid. In the
City of London is the Mansion House Justice-Room, presided over by the
Lord Mayor or one of the Aldermen. The prisoner may ultimately be sent
for trial to the Central Criminal Court, known as the Old Bailey, or
elsewhere.

3. =Quarter Sessions.=--These are held every quarter by Justices of the
Peace. All cases can be tried before the sessions except felonies or
cases which involve difficult legal questions. In London this court is
known as the Central Criminal Court, and it also acts as the Assize
Court. In Borough Sessions a barrister known as the Recorder is
appointed as sole judge.

4. =The Assizes= deal with both criminal and civil cases. There is the
Crown Court, where criminal cases are tried, and there is the Civil
Court, where civil cases are heard. Before a case sent up by a lower
court can be tried by the judge and petty jury, it is investigated by
the grand jury, which is composed of superior individuals. If they
find a 'true bill,' the case goes on; but if they 'throw it out,' the
accused is at liberty to take his departure. At the Court of Assize the
prisoner is tried by a jury of twelve. In bringing in the verdict the
jury must be unanimous. If they cannot agree, the case must be retried
before a new jury. At the Assize Court the medical witness gets a guinea
a day, with two shillings extra to pay for his bed and board for every
night he is away from home, with his second-class railway fare, if there
is a second class on the railway by which he travels. If there is no
railway, and he has to walk, he is entitled to threepence a mile for
refreshments both ways.

5. =Court of Criminal Appeal.=--This was established in 1908, and
consists of three judges. A right of appeal may be based (1) solely on a
question of law; (2) on certificate from the judge who tried the
prisoner; (3) on mitigation of sentence.

Speaking generally, in the Superior Courts the fees which may be claimed
by medical men called on to give evidence are a guinea a day if resident
in the town in which the case is tried, and from two to three guineas a
day if resident at a distance from the place of trial, this to include
everything except travelling expenses. The medical witness also receives
a reasonable allowance for hotel and travelling expenses.

If a witness is summoned to appear before two courts at the same time,
he must obey the summons of the higher court. Criminal cases take
precedence of civil.

A medical man has no right to claim privilege as an excuse for not
divulging professional secrets in a court of law, and the less he talks
about professional etiquette the better. Still, in a civil case, if he
were to make an emphatic protest, the matter in all probability would
not be pressed. In a criminal case he would promptly be reminded of the
nature of his oath.

A medical man may be required to furnish a formal written report. It
may be the history of a fatal illness or the result of a post-mortem
examination. These reports must be drawn up very carefully, and no
technical terms should be employed.

No witness on being sworn can be compelled to 'kiss the book.' The Oaths
Act (51 and 52 Vict., c. 46, 5) declares, without any qualification,
that 'if any person to whom an oath is administered desires to swear
with uplifted hand, in the form and manner in which an oath is usually
administered in Scotland, he shall be permitted to do so, and the oath
shall be administered to him in such form and manner without further
question.' The witness takes the oath standing, with the bare right hand
uplifted above the head, the formula being: 'I swear by Almighty God
that I will speak the truth, the whole truth, and nothing but the
truth.' The presiding judge should say the words, and the witness should
repeat them after him. There is no kissing of the book, and the words
'So help me, God,' which occur in the English form, are not employed. It
will be noted that the Scotch form constitutes an oath, and is not an
affirmation. The judge has no right to ask if you object on religious
grounds, or to put any question. He is bound by the provisions of the
Act, and the enactment applies not only to all forms of the witness
oath, whether in civil or criminal courts, or before coroners, but to
every oath which may be lawfully administered either in Great Britain or
Ireland.

A witness engaged to give expert evidence should demand his fee before
going into court, or, at all events, before being sworn.

With regard to notes, these should be made at the time, on the spot, and
may be used by the witness in court as a refresher to the memory, though
not altogether to supply its place. All evidence is made up of
testimony, but all testimony is not evidence. The witness must not
introduce hearsay testimony. In one case only is hearsay evidence
admissible, and that is in the case of a dying declaration. This is a
statement made by a dying person as to how his injuries were inflicted.
These declarations are accepted because the law presumes that a dying
man is anxious to speak the truth. But the person must believe that he
is actually on the point of death, with absolutely no hope of
recovery. A statement was rejected because the dying person, in using
the expression 'I have no hope of recovery,' requested that the words
'at present' should be added. If after making the statement the patient
were to say, 'I hope now I shall get better,' it would invalidate the
declaration. To make the declaration admissible as evidence, death must
ensue. If possible, a magistrate should take the dying declaration; but
if he is not available, the medical man, without any suggestions or
comments of his own, should write down the statements made by the dying
person, and see them signed and witnessed. It must be made clear to the
court that at the time of making his statement the witness was under the
full conviction of approaching or impending death.





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